Trade dispute

TULRCA says that an act done “in contemplation or furtherance of a trade dispute” is not actionable in the courts just because it makes someone break a contract or interferes with a contract.

For example, a union leafleting campaign aimed at persuading consumers not to buy a product, in the context of a dispute, is not interference with a contract (Middlebrook Mushrooms v TGWU [1993] IRLR 232).

The first test is to establish whether a trade dispute exists. This is defined narrowly in section 244 of TULRCA as a dispute relating “wholly or mainly to” terms and conditions; recruitment, suspension or dismissal; work allocation; discipline; facilities for union officials; or the machinery of negotiation. Only a “trade dispute” can lead to lawful industrial action.

A dispute over the impact of the national curriculum in schools on the working conditions of teachers, for example, falls within the definition (LB Wandsworth v NASUWT [1993] IRLR 344). So does a dispute by teachers over the refusal to teach a disruptive pupil (P v NASUWT [2003] UKHL 8). Where industrial action is in furtherance of a trade dispute, unions and members do not risk civil legal action, provided that, if the action is authorised by the union, it has been approved by a ballot meeting the requirements listed on page 251.

The dispute must be with an employer in the UK. And it must be a dispute between workers and their employer. The fact that the law refers to “workers” and not just “employees” (see Chapter 2) means it covers all those engaged under contracts personally to do work.

The fact that industrial action must involve a dispute with the workers’ own employer makes secondary action illegal. It also means that lawful industrial action is increasingly harder to organise, owing to the fragmentation of UK workforces. In an early example, in 1999, train operating company Connex was granted an injunction to stop industrial action by railworkers protesting about rail safety, on the grounds that responsibility for safety lay not with their employer but with Railtrack, a separate company (Connex SE v RMT [1999] IRLR 249). As already indicated, the ECHR has refused to declare the UK’s ban on secondary action to be in breach of Article 11 (RMT v UK, Application No. 31045/10).

A dispute for political reasons, unconnected with terms and conditions of employment, for example, a refusal by technicians to broadcast to South Africa during the apartheid era (BBC v Hearn [1977] IRLR 213) is not a trade dispute.

In Westminster City Council v UNISON [2001] IRLR 524, a dispute about the identity of a new employer was a trade dispute, not a political dispute. However, a dispute over changes to terms and conditions which would only affect future workers is not a trade dispute:

Under TULRCA, unions can be taken to court for calling or endorsing unlawful action that is not covered by the immunities. The definition of a trade dispute is very narrow. Apart from the limits already identified above, the following forms of industrial action are denied the protection of the immunities: action to enforce union membership (section 222); action in protest at a dismissal following earlier unofficial action (section 223); and action intended to pressurise the employer to force a supplier or contractor to recognise a union (section 225).

Under section 235A of TULRCA, an individual who claims that the supply of goods or services has been affected by unlawful industrial action (for example, action carried out without a fully complying ballot) can apply to the High Court for an order against the union to discontinue its authorisation or endorsement of industrial action. Such individuals do not have to show that they would have been entitled to be supplied with the goods or services in question.

Unions are not allowed to discipline workers who refuse to support industrial action.